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2024 Supreme(Cal) 1039
IN THE HIGH COURT AT CALCUTTA
RAI CHATTOPADHYAY, J.
Dr. Silpa Bandyopadhyay – Appellant
Versus
State of West Bengal & Ors. – Respondents
WPA 428 of 2016
Decided on : 05-07-2024
Advocate Appeared:
For the Appellant : Mr. Samim Ahammed, : Mr. Aniruddha Singh, Mr. Dhanishuddin Abbasi.
IMPORTANT POINT
Statutory provisions governing employment must be followed over executive orders, ensuring due process and equal treatment for employees.
Headnote:
Administrative Law - Writ Petition - West Bengal Board of Madrasah Education Act, 1994; Regulations, 2015 - The court emphasized the supremacy of statutory provisions over executive orders, ruling that the petitioner was denied due process and equal treatment under the law.
Fact of the Case:
The petitioner challenged actions taken against her for participating in a strike, which included a memorandum and letters that treated her absence as unauthorized, leading to salary deductions and a break in service.
Finding of the Court:
The court found that the actions against the petitioner violated the statutory provisions and regulations governing her employment, as they did not follow due process or natural justice principles.
Issues: Whether the actions taken against the petitioner for her absence during a strike were lawful and whether they violated her rights under the applicable statutes and regulations.
Ratio Decidendi: The court held that executive orders cannot supersede statutory provisions, and the petitioner was entitled to due process and equal treatment under the law.
Result: The writ petition was allowed, and the actions against the petitioner were set aside.
JUDGMENT :
Rai Chattopadhyay, J.
1. The writ petitioner is aggrieved due to the impugned Memorandum dated August 31, 2015, issued by the Principal Secretary to the Government of West Bengal. The writ petitioner is also aggrieved of the letter dated October 7, 2015, issued to her by the Secretary, West Bengal Board of Madrasah Education/respondent No.6 and the purported endorsement dated December 2, 2015, made in her service book by the said respondent No.6, that is, the Secretary, West Bengal Board of Madrasah Education. Hence this writ petition. In the same the writ petitioner has also challenged the legality and propriety of the Memorandum dated October 13, 2015, on the ground that the same has promulgated a provision, detrimental to her rights of fair and equal treatment and subversive to the rights enshrined in Article 14 of the Constitution of India.
2. For benefit of discussion, let the background facts be stated here, in a nutshell. The petitioner has been working as the upper division clerk, in the West Bengal Board of Madrasah Education/respondent No.5. Her initial temporary appointment was on and from February 1, 2006. She was confirmed in service with effect from February 1, 2009. November 1, 2009, is the date of her promotion to the present post. Since then, she has been serving continuously and uninterruptedly in the said post.
3. There has been a notification issued by the Government of West Bengal, Finance Department, that is, dated March 6, 2012. The same was relating to the Government’s decision not to grant leave on a stipulated date, which was to be observed as a day of strike by any political party and in case of absence of any person on the same date, to seek an explanation from such absentee employee. However, the following exceptions were also carved out in the said notification:
“1) Leave due and admissible may be granted on production of documentary evidence in the following cases:-
a) Hospitalisation of the employee.
b) Bereavement in the family.
c) Severe illness and absence continuing from before.
d) Employees who had been on leave continuing from before, if such leave was sanctioned prior to issue of the above Circular.
e) Compelling reasons of similar nature, where the employee could not report for duty for circumstances beyond his control. (Specific reasons with documentary proof will have to be furnished in each such case.)
It is mentioned here that dislocation of traffic will not be a reason for granting leave as traffic remained normal on that day.”
4. The impugned Memorandum was issued on August 31, 2015. The same spoke as follows:
“In view of call given by different Trade Unions for bandh/strike all over the country on the 2nd September, 2015, it has been decided that all State Government officers including those provided with Grants-in-Aid by the State Government would remain open and all the employees should report for duty on that date. It has also been decided that no leave would be granted to any employee on the said date.
Now, the governor has been pleased to decide that absence of employees on that date will be treated as dies non and no salary will be admissible unless such absence is covered by the grounds as mentioned in Finance Department Memorandum No.2013-F(P) dt. 06.03.2012. All concerned Heads of Officers will take action accordingly following the procedure as mentioned in above memorandum.
All actions in terms of this order should be completed by 30th September, 2015 and compliance report on action taken should be sent to this Department.”
5. The writ petitioner had participated in the strike on September 2, 2015, and did not join in the office on the said date. According to the Board, her case did not fall under any of those exceptional circumstances (as mentioned in the notification dated March 6, 2012 and quoted above). Hence the employer/respondent Board has taken action against the petitioner, in terms of the said notification dated August 31, 2015 and March 6, 2012. Firstly, by sendi
